Irwin Union Bank and Trust Company et al v. Freedom Mortgage Corporation

Filing 41

ORDER RE STATUS REPORT AND SETTING CASE MANAGEMENT CONFERENCE re 40 Status Report filed by Freedom Mortgage Corporation, Irwin Home Equity Corporation. Joint Case Management Statement due by 3/22/2012. Case Management Conference set for 3/29/2012 02:00 PM in Courtroom 3, 3rd Floor, Oakland. Signed by Judge Phyllis J. Hamilton on 11/7/11. (nah, COURT STAFF) (Filed on 11/7/2011)

1 DAVID J. BERGER, State Bar No. SBN 147645
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[e-mail]
NICOLE M. HEALY, State Bar No. 157417
[e-mail]
WILSON SONSINI GOODRICH & ROSATI
650 Page Mill Road
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: [phone]

6 Attorneys for Plaintiff Irwin Home Equity
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Corporation

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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13 IRWIN UNION BANK AND TRUST

COMPANY AND IRWIN HOME EQUITY
14 CORPORATION,
Plaintiffs,

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v.

17 FREEDOM MORTGAGE COMPANY,

CASE NO. 4:08-cv-00472-PJH
JOINT STATUS REPORT
Action filed: January 22, 2008
Assigned to The Hon. Phyllis J. Hamilton
Courtroom: 3

Defendants.

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Pursuant to the Court’s Order dated September 2, 2011 (Dkt. No. 39), Irwin Home Equity

23 Corporation (“IHE”) and Freedom Mortgage Corporation (“Freedom”) respectfully submit this
24 further joint status report.
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1.

The parties’ last status report was filed on June 24, 2011 (Dkt. No. 38). In that

26 report, IHE stated that it would circulate a preliminary draft settlement agreement by July 27,
27 2011. IHE reports that on July 8, 2011, a non-party affiliate of IHE, Irwin Mortgage Corporation
28 (“IMC”), filed a Chapter 11 bankruptcy petition in the Southern District of Ohio. Although IMC
PARTIES’ JOINT STATUS REPORT
CASE NO. 4:08-CV-00472-PJH

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1 is not a party to the instant action, the parties’ objective has always been to reach a global
2 settlement that would resolve all of the pending actions, one of which includes IMC.
3 Unfortunately, IMC’s bankruptcy filing has delayed progress towards this objective. IHE’s
4 understanding is that IMC is not yet in a position to consider a settlement, and such settlement, if
5 approved by IMC would be subject to further approval by the bankruptcy court. Nevertheless, to
6 demonstrate good faith, IHE has circulated two versions of a draft settlement agreement to
7 Freedom for review and comment, with the understanding that the drafts have not yet been
8 approved by the board or approving body of any party.
2.

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Based upon its investigation to date, IHE continues to believe that the consent and

10 participation of the FDIC in its role as receiver (“FDIC-R”) for plaintiff Irwin Union Bank and
11 Trust Company (“IUBT”) is necessary to achieve a global settlement of all disputes and claims
12 between the Irwin entities and Freedom, including not only the instant action, but also the matter
13 captioned Freedom Mortgage Corp. v. Irwin Financial Corp., et al., Case No. 3:09-cv-0139914 MEJ (N.D. Cal.), as well as the arbitration proceeding captioned Freedom Mortgage Company v.
15 Irwin Union Bank and Trust Company and Irwin Home Equity Corporation, Case No.
16 MX080300205058323 (National Arbitration Forum).
3.

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Although IHE has continued to communicate with inside counsel for the FDIC-R

18 concerning its participation in this action, as well as regarding the proposed settlement, the
19 FDIC’s in-house counsel has represented that the FDIC-R believes that because it is not a party
20 to this action, it need not participate in this action or in any settlement. IHE is awaiting a further
21 response from the FDIC.
4.

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IHE and Freedom remain interested in attempting to resolve this litigation and the

23 other pending matters. Given the position of the FDIC-R, and IMC’s bankruptcy filing, the
24 parties seek additional time to determine whether a satisfactory settlement is possible.
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PARTIES’ JOINT STATUS REPORT
CASE NO. 4:08-CV-00472-PJH

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5.

Based on the foregoing, IHE and Freedom therefore request that the Court set this

2 matter for further status review in March 2012.
3 Dated: October 31, 2011
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WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
By:

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/s/ Nicole M. Healy
Nicole M. Healy

DAVID BERGER
[e-mail]
NICOLE M. HEALY
[e-mail]
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]

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Counsel for Irwin Home Equity Corporation

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12 Dated: October 31, 2011
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BUTY & CURLIANO, LLP
By:

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/s/ Jason C. Curliano
Jason C. Curliano

JASON J. CURLIANO
[e-mail]
555 12th Street
Suite 1280
Oakland, CA 94607
Telephone:
[phone]
Facsimile:
[phone]

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Counsel for Freedom Mortgage Corporation

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PARTIES’ JOINT STATUS REPORT
CASE NO. 4:08-CV-00472-PJH

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ATTESTATION
I, Nicole M. Healy, am the ECF User whose identification and password are being used

3 to file this Joint Status Report. In compliance with General Order 45.X.B, I hereby attest that
4 Jason C. Curliano has concurred in this filing.
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6 Dated: October 31, 2011
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WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
By:

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/s/ Nicole M. Healy
Nicole M. Healy

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PARTIES’ JOINT STATUS REPORT
CASE NO. 4:08-CV-00472-PJH

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A CASE MANAGEMENT CONFERENCE WILL
BE HELD ON MARCH 29, 2012. A JOINT
CASE MANAGEMENT CONFERENCE
STATEMENT SHALL BE FILED BY
MARCH 22, 2012.

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